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en-usTechdirt. Stories filed under "redactions"https://ii.techdirt.com/s/t/i/td-88x31.gifhttps://www.techdirt.com/Wed, 24 Jun 2015 11:34:00 PDTThe Ridiculous Redactions The DOJ Required To Try To Hide The Details Of Its Google Gag OrderMike Masnickhttps://www.techdirt.com/articles/20150624/00310831441/ridiculous-redactions-doj-required-to-try-to-hide-details-google-gag-order.shtml
https://www.techdirt.com/articles/20150624/00310831441/ridiculous-redactions-doj-required-to-try-to-hide-details-google-gag-order.shtmlgagging Google for over four years, preventing it from telling Jacob Appelbaum about the government's §2703(d) Order for his Gmail info (a §2703(d) order is like a subpoena, but with less privacy protections -- which is why the government is a fan). The gag was finally allowed to be lifted on April 1st of this year, despite most of the key moments happening in the early months of 2011. However, as part of the agreement to finally unseal this document, the DOJ apparently required parts of it to be redacted. Perhaps that's understandable, but some of the redactions are so ridiculous as to be laughable -- starting mainly with trying to make sure that every judge and every DOJ employee in the documents is hidden away. Throughout the document, you see examples like this:

Of course, amusingly, sometimes they redact the phone numbers, and sometimes they don't. So I'm sure that's useful.

And, really, what sort of court system do we have when the judges get to have their names redacted:

And, of course, there are plenty of pages like the following:

But the truly hilarious redactions come elsewhere. For example, despite being mentioned throughout the document without redactions, the name "Wikileaks" is redacted when mentioned in the headlines of stories and URLs.

I mean... really. The redactions of those URLs? What's that about? Does anyone honestly think that people can't find those articles? For what it's worth:

And there's an exhibit with the first of those two "tweets" redacted again:

Yeah, that's Wikileaks' Twitter account, which is kinda obvious from the background and all. But here you go:

The second one -- despite the claim in the document -- does not actually appear to be a tweet at all. However, it was stated by another of the individuals who the DOJ targeted with the Twitter Order, Rop Gonggrijp -- not on his Twitter account, but rather in a blog post about being targeted.

They even want Wikipedia redacted. I wish I were joking.

And that one even tries -- but sometimes fails to redact each mention of Wikileaks even in the references and links at the end. I mean, really:

All of this should raise plenty of questions. Beyond just the ridiculousness of the original gag order, it now appears that the DOJ is abusing the redaction process for no good reason at all. In some cases, it's clearly to avoid having any of the DOJ team or the judges criticized publicly -- because what kind of democracy or due process is there if we have transparency. In other cases, it just seems... to be for no reason whatsoever except "because we can." That's not how the judicial system is supposed to work. We have public courts for a reason.

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]]>come onhttps://www.techdirt.com/comment_rss.php?sid=20150624/00310831441Fri, 1 May 2015 18:36:24 PDTFBI Hands Over 5000 Pages Of Stingray Info To MuckRock, Redacts Nearly All Of ItTim Cushinghttps://www.techdirt.com/articles/20150501/09393330847/fbi-hands-over-5000-pages-stingray-info-to-muckrock-redacts-nearly-all-it.shtml
https://www.techdirt.com/articles/20150501/09393330847/fbi-hands-over-5000-pages-stingray-info-to-muckrock-redacts-nearly-all-it.shtml
MuckRock has obtained a whole stack of Stingray-related documents from the FBI. As is to be expected, there's not much left unsaid by the agency, which is at least as protective of its own Stingray secrecy as it is with that of law enforcement agencies all over the US.

There's nearly 5,000 pages of "material" here, most of which contains only some intriguing words and phrases surrounded by page after page of redactions.

Want to know [REDACTED]'s thoughts on the possible legal implications of Triggerfish? Just close your eyes and allow your imagination to run free.

Here's a quick reference guide that allows FBI agents to quickly match up their chosen "technique" with the appropriate legal standard and process.

That's not to say there's nothing of interest left intact. A few pages explain the FBI's legal rationale for IMSI catcher deployment -- including the fact that the Patriot Act expanded the reach of pen register orders to include not just numbers dialed, but also the location of the phone itself. This allows the FBI and other law enforcement agencies to route around one of CALEA's (Communications Assistance for Law Enforcement Act) few limitations related to pen register orders: that service providers not be required to hand over subscriber location info.

In passing CALEA in 1994, Congress required providers to isolate and provide to the government certain information relating to telephone communications. At the same time that it created these obligations, it created an exception: carriers shall not provide law enforcement with "any information that may disclose the physical location of the subscriber" in response to a pen/trap order… By its very terms, this prohibition applies only to information collected by a provider and not to information collected directly by law enforcement authorities. Thus, CALEA does not bar the use of pen/trap orders to authorize the use of cell phone tracking devices used to locate targeted cell phones.

"It does not seem credible to me that they can't release more of those kinds of records," [ACLU attorney Nate] Wessler told me. "Information about ongoing investigations, highly technical details of the devices, how they're put together, those kinds of things, redact them, fair enough. Information about whether they have to get a warrant or not, how they purge or do not purge bystanders data. They're clearly talking about those things."

"There's no conceivable reason why they shouldn't tell the public what their Fourth Amendment rights are protecting when they use these," he added. "The documents are not without value, but what the FBI has released is not adequate."

If nothing else, the documents have given a small, narrow glimpse behind the FBI's veil of secrecy -- as well as some more insight into its Stingray-related legal maneuvering. The FBI has managed to turn a pen register order -- something previously used to collect dialed numbers -- into something that can be deployed to locate an individual, or at least their cellphone. Unsurprisingly, this legal theory traces back to the Patriot Act, one of the largest expansions of intelligence and law enforcement powers ever produced by the US government.

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]]>[NOTHING-TO-SEE-HERE]https://www.techdirt.com/comment_rss.php?sid=20150501/09393330847Mon, 27 Apr 2015 15:43:02 PDTSeattle PD Hires Coder Who Demanded It Hand Over Every Video Produced By Its Body CamerasTim Cushinghttps://www.techdirt.com/articles/20150422/10433030757/seattle-pd-hires-coder-who-demanded-it-hand-over-every-video-produced-body-cameras.shtml
https://www.techdirt.com/articles/20150422/10433030757/seattle-pd-hires-coder-who-demanded-it-hand-over-every-video-produced-body-cameras.shtmlBack in December, an anonymous person requested pretty much every report the Seattle PD generates daily, along with all footage from its newly-instituted body camera program. Today, that man is no longer anonymous and was recently hired by the Seattle PD.

The Seattle Police Department is taking the unconventional step of bringing a programmer who bombarded it with public records requests in-house. Chief Operating Officer Mike Wagers has led efforts to hire 24-year-old self-taught programmer Tim Clemans—initially, at least, on a three-month trial basis to work on redaction and disclosure of data.

He'll make $22.60 an hour and start on May 6. If all goes well, Clemans will stay on as a full-time staffer.

Fortunately, some reconsideration of the issue resulted in the PD attempting to make transparency and technology its ally, rather than its enemy. It has started its own YouTube channel and uploads body cam footage frequently. It held a hackathon to address the issue of en masse redaction -- something no other police force seems to have considered when facing the same nexus between accountability and privacy. Most have simply opted to withhold the footage from 99.9% of the public.

But not the Seattle PD. Not only did it host a hackathon, but it hired Clemans, despite his admittedly vexatious FOIA request and despite him having posted dash-cam footage of an incident where he was hassled by one of Seattle's finest.

The police department is hiring Clemans despite a tense March 27 encounter with Officer Jason Bender at Westlake Center. Clemans said he was filming police that day and pointed his camera at the officer during a benign interaction with two young men—one black and one white. "My filming just demonstrates what the police are doing," he said when asked why he was filming them in particular. "Both the good and bad."

But, he said, Bender was annoyed at being filmed. A dash-cam video (obtained by Clemans and posted on his YouTube account, of course!) only recorded garbled audio of a lengthy argument that ensued. Bender, who identifies himself as a member of the department's Crisis Intervention Team, asks Clemans pointedly, "Do you videotape criminals? No, you don't. You know why? Because the criminals are not"—but here the audio becomes difficult to make out. "Enjoy your safety that's provided to you."

It should be noted that Seattle has been much more proactive in considering the concerns of its citizens, rather than in deferring to whatever law enforcement officials say is best for everybody. The mayor's office evicted the Seattle PD's two drones, citing the need to "focus" on "community building," rather than simply keeping an eye on as much of the community as technologically possible. (The drones ended up with the LAPD, which shares none of these concerns.)

The good news is that Clemans is viewed as someone who can help the Seattle PD reach its goals. He'll be working on more auto-redaction solutions -- targeting the removal of personally-identifiable information on citizens from police documents. His auto-redaction work for body cam footage is still being fine-tuned. Most of what's been uploaded to date is blurry and unintelligible, but this recently-uploaded video tries a new approach -- one that's visually striking, even if it's still mostly useless as a tool of accountability.

Considering how most law enforcement agencies value their privacy over that of the general public's, it's kind of nice to see an agency take a much more balanced approach to this sort of situation. Body cameras are headed towards being as ubiquitous as dash-cams, so there will need to be processes in place to prevent privacy violations. While most have opted at this point for maximum obfuscation, the Seattle PD actually seems to want to be ahead of the transparency curve.

District Court Judge James Boasberg ruled against a journalist on Tuesday who had tried to uncover the classified documents — known as the Panetta Review, because they was completed under orders from former agency Director Leon Panetta — under the Freedom of Information Act (FOIA).

The CIA had used “sound” reasoning in keeping the documents secret, Boasberg decided in a 19-page judgment, preventing it from making its way to the public.

The journalist in question is every secretive agency's side-thorn, Jason Leopold, who sued the CIA one day after it passed the response deadline. And now this attempt to pry more torture-related documents out of the CIA's hands has hit a dead end. Judge Boasberg agreed that the overbroad exemptions cited are (unsurprisingly) broad enough to cover the CIA's assertion that the 40 memos comprising the Panetta Review must be withheld in full.

In the end, requiring disclosure of the Reviews would cause the sort of harm that the deliberative-process privilege was designed to prevent – i.e., inhibiting frank and open communications among agency personnel… Had the SRT known that the Reviews could become public, its members would likely have been tempted to highlight only the information that would paint the agency’s prior actions in a positive light and to avoid calling attention to information that could have embarrassed the agency or its officials. Protecting the agency’s withholdings in this case is thus consistent with the purposes of this exemption…

The Court, in sum, concludes that the Reviews are properly withheld under Exemption 5’s deliberative-process privilege. It further agrees that they may be withheld in full. While FOIA requires agencies to release “[a]ny reasonably segregable portion of a record,” 5 U.S.C. § 552(b), it is clear that there are no such portions here. As the agency attests, and as the preceding discussion makes clear, “[t]he entire documents are pre-decisional, deliberative drafts . . . .” Lutz Decl., ¶ 26. Because “the selection of which facts to include [wa]s part and parcel of the deliberative assessment,” no portions can be severed without exposing the deliberative process itself.

Two interesting things to note about the Panetta Review and this particular case.

First, the CIA seems to be bolstering its FOIA exemption b(5) claims by designating documents as "draft" or "deliberative," no matter what their actual purpose is. In its supporting declaration filed in this lawsuit, it deployed circular reasoning declaring drafts and deliberative documents are drafts and deliberative documents because they are clearly marked as such by the CIA.

In a court filing last month as part of a Freedom of Information Act lawsuit, a C.I.A. officer said that the review had been stopped abruptly in 2010, had not covered all of the documents the agency had given to the committee and “had not been formally reviewed or relied upon by the C.I.A.’s senior leadership.”

“Each document is stamped ‘DELIBERATIVE PROCESS PRIVILEGED DOCUMENT’ at the top of every page, and most of the documents are marked ‘DRAFT’ on every page as well,” wrote the C.I.A. officer, Martha M. Lutz.

The CIA's internal document designations seem to bear some resemblance to the NYPD's use of its "SECRET" stamp -- which is deployed arbitrarily and without oversight to declare certain documents out of the reach of Freedom of Information Law (FOIL) requests. If the CIA feels exemption b(5) gives it the best chance to keep documents out of the hands of journalists like Jason Leopold. it can slap these designations on as many papers as possible and mention its predetermination in FOIA lawsuit declarations.

Second, Boasberg's refusal to challenge even a single exemption assertion by the CIA isn't particularly good news, considering his recent appointment to the FISA court. While he has pushed back on government secrecy in the past, he's also been just as likely to grant its wishes. Considering he's replacing FISA Judge Reggie Walton -- one of the few FISA judges to openly question surveillance tactics and hold the NSA accountable for its abuses -- this latest decision seems to indicate his appointment is a downgrade in terms of government accountability.

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]]>whatever-the-CIA-said-about-torturing-folks-is-between-the-CIA-and-the-CIAhttps://www.techdirt.com/comment_rss.php?sid=20150405/14005930558Fri, 3 Apr 2015 19:39:00 PDTUSPTO Demands EFF Censor Its Comments On Patentable Subject MatterMike Masnickhttps://www.techdirt.com/articles/20150403/14555030543/uspto-demands-eff-censor-comments-patentable-subject-matter.shtml
https://www.techdirt.com/articles/20150403/14555030543/uspto-demands-eff-censor-comments-patentable-subject-matter.shtmlruling in the Alice v. CLS Bank case, in which it basically said that merely doing something on a general purpose computer didn't automatically make it patentable. This has resulted in many courts rejecting patents and the USPTO being less willing to issue patents, based on that guidance. The USPTO sought to push out new "guidance" to its examiners taking the ruling into account. Soon after the Alice ruling, it issued some "Preliminary Examination Instructions." However, it then issued the so-called 2014 Interim Guidance on Subject Matter Eligibility and sought public comment through March 16 of this year.

Plenty of folks did comment, including the EFF. However, the USPTO apparently was offended at parts of the EFF's comment submission, claiming that it was an "improper protest." In response, the EFF refiled the comment, but redacted the part that the USPTO didn't like. Here's what page 5 of the document on the USPTO site looks like:

However, EFF also added the following footnote (footnote 8) on page 6:

On April 2, 2015, the PTO contacted EFF to request that we remove a portion of these comments on the basis that they constituted an improper “protest.” We respectfully disagree that our comments were a protest under 35 U.S.C. § 122(c). Rather, our comments discussed a specific application to illustrate our broader points about the importance of applying Alice. Nevertheless, to ensure these comments are considered by the Office, we have redacted the relevant discussion in this revised version of our comments. Our original comments remain available to the public at: https://www.eff.org/files/2015/03/18/eff_comments_regarding_ interim_eligibility_guidance.pdf.

And, of course, if you go to that link, you get the full, unredacted version of the EFF's filing.

As you can see by the full filing, the EFF filing isn't some sort of improper protest. Rather it is a clear demonstration of how the USPTO does not appear to be living up to what the courts are saying in the wake of the Alice ruling. It is difficult to see what the USPTO was thinking in trying to silence the EFF's comment. It is beyond ludicrous on multiple levels. First, it suggests a skin so thin at the USPTO that you can see right through it. Second, it suggests that the USPTO doesn't want people to recognize that its guidance is problematic in light of what actual federal courts are saying. And, finally, it suggests (still) a complete lack of understanding of how the internet and freedom of expression works, thereby guaranteeing that the EFF's complete dismantling of the USPTO's guidelines will now get that much more attention...

Has anyone patented a method and system for self-inflicted shaming for being overly sensitive to someone pointing out your flaws?

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]]>check the footnoteshttps://www.techdirt.com/comment_rss.php?sid=20150403/14555030543Fri, 30 Jan 2015 18:16:23 PSTWichita Police Respond To Request For Shooting Incident Details With A Handful Of Fully-Redacted PagesTim Cushinghttps://www.techdirt.com/articles/20150119/06150629744/wichita-police-respond-to-request-shooting-incident-details-with-handful-fully-redacted-pages.shtml
https://www.techdirt.com/articles/20150119/06150629744/wichita-police-respond-to-request-shooting-incident-details-with-handful-fully-redacted-pages.shtml
So much for the power of open records requests. Sure, you get some scratch paper out of the deal, but otherwise, there's nothing "open" about this shooting report delivered in response to the Wichita Eagle's request. (h/t to Techdirt reader Brig C. McCoy, via KansasExposed.org)

The city of Wichita has released a heavily redacted public incident report from the Jan. 3 police shooting of John Quintero.

About four and a half pages of the five-page report are redacted. The reports typically detail what happened in an incident and include information from witnesses and officers involved.

Pretty much the entirety of the released report [pdf link] looks like this:

(If you can't see the embed, don't sweat it. Literally nothing to see but black ink, although you are missing the unintentionally ironic title of "Public Incident Report.")

The only information actually revealed is a short description of the incident.

Everything else, including officers' statements and those from the three witnesses have been redacted. What was released was common knowledge, as the Wichita Eagle had been covering the case since the night it happened. Officers responded to a call reporting a "disturbance involving a knife." 23-year-old John Quintero was shot by officers after he became "belligerent" and "reached for his waistband." No weapon was found on Quintero.

Now, there may be a good reason this was all redacted. Or if not a good reason, than at least the usual reason police departments withhold information: the case is still under investigation. But the Wichita PD hasn't offered any comment on its decision to redact nearly everything in this report. One wonders why it even bothered releasing it at all. It's one thing to be transparent. It's quite another to make meaningless gestures like this in the letter of open records laws, while avoiding the spirit of them entirely.

And it may not actually still be under investigation. The only other interesting item left unredacted follows the truncated incident report. Under the heading "Add'l info" it says the following:

1 - 0130 JUSTIFIABLE HOMICIDE - - Original Report

What it looks like (and, of course, one can only infer so much from this extremely limited "data set") is that the officer involved has either been cleared or is well on her way to being cleared at this point -- 10 days after the shooting occurred.

The Wichita Police have offered no statement one way or the other on its justifiable homicide report, but its silence, along with its secrecy, indicates it would rather have this blow over quickly than deal with the consequences of a questionable shooting. Of course, it's far from the only law enforcement agency to "mistake" multiple pages of opaque black ink for "transparency." If you're doing nothing wrong, you've got nothing to hide, right?

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]]>literally-nothing-to-see-here,-move-alonghttps://www.techdirt.com/comment_rss.php?sid=20150119/06150629744Fri, 30 Jan 2015 12:36:41 PSTRedactions To Report On TSA's Internal Security Failures Prompts Angry Response From Inspector GeneralTim Cushinghttps://www.techdirt.com/articles/20150126/13123729824/redactions-to-report-tsas-internal-security-failures-prompts-angry-response-inspector-general.shtml
https://www.techdirt.com/articles/20150126/13123729824/redactions-to-report-tsas-internal-security-failures-prompts-angry-response-inspector-general.shtml
The DHS's Inspector General has finally released a report [pdf link] on the agency's control of TSA information systems at JFK International Airport. It's been delayed several times, mainly because of (now former) TSA head John Pistole's refusal to communicate with the Inspector General's office.

This report -- which has a release date of January 16, 2015 -- was actually completed on July 22, 2014. It was turned over to the TSA's CIO for a review, which should have been concluded within 30 days. The DHS Chief of Staff asked for additional time after failing to meet this deadline. The Inspector General granted another 30 days, making the new deadline September 17.

This revised due date came and went without a response from the TSA. On October 20th, the TSA finally produced its approved version of the IG's report, but not without several redactions of supposed SSI (Sensitive Security Information). The IG formally challenged the redactions in a November memo to John Pistole. Pistole never responded. Another memo was issued in December, which was also ignored by the TSA chief.

Finally, five months after its sensitive information review, the report was returned to the IG's office. All of the challenged redactions remained.

The IG's letter, which opens up the report, expresses his displeasure at the TSA's stalling tactics and secrecy.

I am disappointed in both the substance of the decision as well as its lack of timeliness. In 2006, Congress, concerned about delays in appeals of this nature, directed the Department to revise DHS Management Directive 11056.1 to require TSA to require timely SSI reviews. Given the clear requirement for timely SSI reviews in response to requests from the public, we hoped that TSA would approach an SSI appeal from the Inspector General with similar diligence, especially because TSA was aware of our deadlines.

Now, to meet our reporting requirement, we are compelled to publish a redacted report with SSI markings and will again ask the head of TSA to overrule the SSI program office's decision.

I believe that this report should be released in its entirety in the public domain. I challenged TSA's determination because this type of information has been disclosed in other reports without objection from TSA, and because the language marked SSI reveals generic, non-specific vulnerabilities that are common to virtually all systems and would not be detrimental to transportation security. My auditors, who are experts in computer security, have assured me that the redacted information would not compromise transportation security. Our ability to issue reports that are transparent, without unduly restricting information, is key to accomplishing our mission.

So, here we have a clear case of the TSA thwarting its own oversight in order to withhold information from the public. These are the sorts of things the TSA doesn't want you to see.

The TSA believes that exposing this information (such as the locations of its unsecured areas) will create a security risk, but it doesn't explain how that would be any different from the state the areas were in when the OIG inspected them. Unless JFK's TSA staff haven't taken any steps, the issues pointed out in the report like exposing the location of these areas (and, I don't know, CLOSING AND LOCKING DOORS), shouldn't matter.

As for redacting the number of vulnerabilities found in the TSA's servers, the only plausible explanation is that every number in those blacked-out charts is higher than agency feels comfortable disclosing. Whether the number is 2 or 9 really doesn't matter. (In one total column, it's obviously a two-digit number.) It only takes one hole to compromise a system.

While the TSA managed to withhold some information, much of what's left untouched isn't exactly flattering. The TSA's "security theater" apparently extends to its internal operations. We know the TSA generally "catches" terrorists by allowing airborne passengers do all the heavy lifting. This same "work ethic" applies to securing its own systems. From the looks of what the IG found, TSA agents at JFK apparently believe internal security is someone else's job and even the most basic of controls haven't been implemented.

At JFK, TSA did not have visitor logs in any of its communication rooms to document the entry and exit of visitors to these rooms that contain sensitive IT equipment.

[...]

Fire protection, detection, and suppression controls were not present in many TSA communication rooms. Specifically, 14 of the 21 rooms inspected that contained sensitive equipment did not have fire extinguishers…

Compounding the issue of fire detection and mitigation, only 7 of 21 the rooms inspected contained smoke detectors. Smoke detectors alert the appropriate personnel of a potential fire and possible hazard.

[...]

Several TSA communication closets located in the JFK terminals contained storage items and cleaning supplies. For example, we found TSA equipment on top of an unlocked TSA telecommunication cabinet surrounded by a ladder, boxes, trash, and cleaning supplies. The ladder, boxes, and cleaning supplies are all harmful to IT equipment. Additionally, there was no sign in sheet, and non-TSA personnel used the room for equipment storage.

TSA did not have an operable uninterruptible power supply (UPS) in three communication cabinets…

A sensitive equipment cabinet located in a public area was unlocked and left open to run an extension cord to a nearby electrical outlet for power.

The door to the secure Explosive Detection Systems room, where TSA reviews x-ray images of luggage to determine if suspicious checked luggage requires additional inspection, was propped open to vent a portable air conditioning unit, violating physical security controls.

The IG makes several recommendations, most of which can be boiled down to four words: FOLLOW EXISTING DHS POLICIES.

Since this report contains inspections of every other DHS agency with operations at the JFK airport, similar faults were found for both CBP (Customs and Border Protection) and ICE (Immigrations and Customs Enforcement). However, one agency managed to pass inspection: the Secret Service.

USSS fully complied with DHS operational, technical, and management operational policies for its telecommunication room at JFK. We audited IT security controls of the USSS telecommunication room located at the JFK on-site building number 75. This location had a DHS OneNet connection and a network switch device. The telecommunications room was clean and well maintained. Visitor’s logs were also maintained. Humidity and temperature sensor readings were within DHS policy guidelines. Since, the JFK location did not have an on-site server, vulnerability scans were not applicable.

What we have detailed here is another security agency making an effort to thwart its oversight. The TSA managed to delay a critical report by 6 months and withhold supposedly "sensitive" information over the repeated protests of the Inspector General. In doing so, it has shown Americans who really holds the power in Washington -- and it isn't these agencies' internal and external oversight.

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]]>do-what-thou-wilt,-or-mostly-don't;-that-is-the-whole-of-the-policyhttps://www.techdirt.com/comment_rss.php?sid=20150126/13123729824Thu, 4 Dec 2014 13:38:20 PSTUSPTO Acts Like A Three-Letter Agency, Redacts A Bunch Of Stuff About Its Kid-Friendly 'T. Markey' CharacterTim Cushinghttps://www.techdirt.com/articles/20141203/15321529320/uspto-acts-like-three-letter-agency-redacts-bunch-stuff-about-its-kid-friendly-t-markey-character.shtml
https://www.techdirt.com/articles/20141203/15321529320/uspto-acts-like-three-letter-agency-redacts-bunch-stuff-about-its-kid-friendly-t-markey-character.shtml
What the office came up with was a Poochie for the IP wonk crowd (10 and under division). Here's T. Markey doing something approaching rad in celebration of the 2012 National Trademark Expo. There's also a QR code on the poster, which probably does whatever it is that QR codes do. Trendy as hell.

The USPTO drops the dreaded b(5) exemption all over its internal emails, withholding stuff seemingly just to be withholding stuff, which is what the b(5) exemption does best. Supposedly this exemption is limited to memos or letters that would not be available to anyone but a "party in litigation with the [responding] agency," but in this case, seems to cover information otherwise in the public domain.

Here's another redacted set of search results, covering variations like MARKY or MARKEY appearing on clothing. Hopefully, the two pages of black ink are covering up images rather than words. Otherwise, it would appear that the MARKY/MARKEY market is incredibly overcrowded.

Why the agency decided to black out these search results is a mystery, considering the USPTO's site itself allows anyone to search for registered word and image marks. Maybe the USPTO just wanted to be like its big brothers (pun possibly intended), the FBI and the NSA, and just redact something, no matter how insignificant.

And then there's this, in which bad scanning meets a third- or fourth-generation copy to create a murky, impressionistic nightmare in which Mickey Mouse is slowly consumed by a malevolent but iconic 70s-era smiley face that oozes all-encompassing blackness.

Possibly a metaphor for something, but more likely just another piece of roadkill at the intersection of Technology and Bureaucracy. You can never be too safe when releasing responsive documents, it would appear, even when your biggest secret is how examiners maintain straight faces when approving certain patent and trademark applications.

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]]>the-Mickey-Mouse-of-government-trademark-office-mascotshttps://www.techdirt.com/comment_rss.php?sid=20141203/15321529320Fri, 31 Oct 2014 15:54:28 PDTSenator Wyden Attacks CIA Redaction Demands As 'Unprecedented'Mike Masnickhttps://www.techdirt.com/articles/20141031/14120229003/senator-wyden-attacks-cia-redaction-demands-as-unprecedented.shtml
https://www.techdirt.com/articles/20141031/14120229003/senator-wyden-attacks-cia-redaction-demands-as-unprecedented.shtmlCIA torture report, put together by staffers of the Senate Intelligence Committee over many years at a cost of $40 million. It's known that the report is somewhat devastating to the CIA and the CIA isn't happy about it (at all). Originally, the CIA suggested redactions that made the report incomprehensible, even as James Clapper said it was "just 15%" that was redacted. Recent reports have focused on the fight over redacting pseudonyms. Apparently the CIA wants all names, including pseudonyms redacted, while the Senate Intelligence Committee thinks that pseudonyms (but not real names) should be left in so that the report accurately reflects if the actions were done by a large number of diverse individuals, or by some particular individuals again and again and again. The CIA, likely employing some sort of "mosaic theory" claim, say that they're worried that even with pseudonyms, identifying the same person in a few different situations will make it easier for some to figure out who they are.

The CIA’s current opposition to using pseudonyms runs contrary to decades of precedent. U.S. government agencies have used pseudonyms to protect agents’ identities in public reports going back decades, including:

Final Report of the Assassination Records Review Board – (1998) – Includes the names of some CIA officers, and notes that “in some cases pseudonyms are used instead of an individual’s true name.” (p. 52) Also notes that “the Review Board would not agree to CIA’s request for blanket postponements of CIA names.” Page 48.

Alleged Assassination Plots Involving Foreign Leaders – (1975) – Report authored by the Church Committee notes that “We believe that the public is entitled to know what instrumentalities of their Government have done,” and that “the Committee, on occasions, resorted, on balance, to the use of an alias or a general description of the individual or his position.” Page 2.

So why does the CIA seem to think it's such a problem here? Well, mainly because the CIA is willing to do just about anything to stop this report, perhaps in an effort to run out the clock until some more "CIA friendly" Senators take over. Still, it seems that the more the CIA fights over this, the more and more likely it is that someone is just going to leak the damn report, and it may reveal a lot more than what's currently on the table.

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]]>unprecedented-problems-may-need-unprecedented-solutionshttps://www.techdirt.com/comment_rss.php?sid=20141031/14120229003Tue, 9 Sep 2014 15:53:00 PDTWhite House And Senate Intelligence Committee Still Can't Agree On CIA Torture Report RedactionsMike Masnickhttps://www.techdirt.com/articles/20140909/14244628464/white-house-senate-intelligence-committee-still-cant-agree-cia-torture-report-redactions.shtml
https://www.techdirt.com/articles/20140909/14244628464/white-house-senate-intelligence-committee-still-cant-agree-cia-torture-report-redactions.shtmlCIA torture report, which will detail how the CIA committed torture, lied about it, and how that torture did nothing even remotely effective. As you may recall, the Senate Intelligence Committee, which wrote the report, voted back in April to declassify the 480-page "executive summary" which was written to be declassified. That is, the really secret stuff is buried in the other 6,000 pages or so. Given that, the expectation was that the exec summary would need minimal redactions. Of course, the White House asked the CIA to handle the redactions, and considering that the report makes the CIA look bad, the CIA suddenly became quite infatuated with that black redaction ink.

The report came back to the Senate Intelligence Committee with significant redactions, so much so that the Intelligence Committee declared it unacceptable and even argued that the choices in redactions made the report incomprehensible.

Since then there's been back and forth fighting over it, with some reports suggesting that the (still redacted) report might finally come out in the next week or two. However, those plans are on hold, as apparently the White House and the Senate Intelligence Committeestill can't agree on redactions, leading some to say the report won't be released until November at the earliest.

Once again, we're left wondering why the Senate Intelligence Committee won't just go with plan B and release the damn thing themselves. All of this delaying only works to the CIA's advantage. The CIA has no incentive at all to compromise and come to agreement on the redactions since it wants the report hidden. And, yes, the White House claims to want the report released and it's got the final say over the CIA, but its actions to date have not suggested that the White House is particularly serious about getting this report out there.

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]]>release-the-whole-thinghttps://www.techdirt.com/comment_rss.php?sid=20140909/14244628464Fri, 5 Sep 2014 09:00:24 PDTCIA Redacted 'Off The Record, No Comment' From Released DocumentsMike Masnickhttps://www.techdirt.com/articles/20140904/17042228419/cia-redacted-off-record-no-comment-released-documents.shtml
https://www.techdirt.com/articles/20140904/17042228419/cia-redacted-off-record-no-comment-released-documents.shtmlThe Intercept, there's an article claiming that the AP's national security reporter Ken Dilanian had a too cozy relationship with the CIA while he was at the Tribune Company. It's an interesting read, based on pages upon pages of emails between reporters and the CIA that were released under a FOIA request. However, what caught my attention, more than the full story, was something in all of those emails, spotted by Katherine Hawkins. And it's that, on page 363, it seems clear that the CIA, when releasing these emails, redacted the line "Off the record, no comment." It's rather obvious, because Dilanian immediately repeats that line right back, somewhat angrily at the ridiculousness of it.

Rather than using the all purpose b(5) redaction, it appears that the CIA is claiming a b(3) and b(6) reason for this comment being "redacted" (even though they left it in in Dilanian's reply). b(3) is for documents "specifically exempted from disclosure by statute" and b(6) is for documents "personnel and medical and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy."

I'm curious how "off the record, no comment" qualifies as either. It appears to be redactions for redactions' sake.

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]]>huh?https://www.techdirt.com/comment_rss.php?sid=20140904/17042228419Thu, 7 Aug 2014 09:03:40 PDTHow Redacting 'Just 15%' Can Hide The Details Of CIA's Torture ProgramMike Masnickhttps://www.techdirt.com/articles/20140806/15065328131/redacting-just-15-can-really-change-story.shtml
https://www.techdirt.com/articles/20140806/15065328131/redacting-just-15-can-really-change-story.shtmltorture report continue, it's worth reminding folks how you can totally change the story with just a few well placed redactions. Director of National Intelligence has insisted that just 15% was redacted -- though, as Marcy Wheeler points out, the part that's being declassified is just the exec summary, which was written specifically to get around the redactor's ink, since the details are buried in the full report, which will likely remain classified for a while. In other words, the vast, vast majority of the report is still "redacted." Still, even a 15% redaction can do a lot of damage and hide a lot of facts. Senator Mark Udall has made it clear that the existing redactions make parts of the report "incomprehensible" in an effort to hide embarrassing information from the public.

Reed Richardson decided to do a fairly simple demonstration to show just how much a 15% redaction can bury key points. He took President Obama's statement about how "we tortured some folks" and redacted "just 15%" of it (though such that if you look closely, you can see what's covered). Notice how the key elements -- the admission of torture -- simply fade away...

Richardson told me the whole exercise took less than 10 minutes, demonstrating just how easy it is to distort a report based on a few strategic redactions.

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]]>here's-an-examplehttps://www.techdirt.com/comment_rss.php?sid=20140806/15065328131Wed, 6 Aug 2014 07:52:29 PDTSenators Slam White House For CIA Torture Report Redactions That Make It 'Incomprehensible'Mike Masnickhttps://www.techdirt.com/articles/20140805/15240828119/senators-slam-white-house-cia-torture-report-redactions-that-make-it-incomprehensible.shtml
https://www.techdirt.com/articles/20140805/15240828119/senators-slam-white-house-cia-torture-report-redactions-that-make-it-incomprehensible.shtmltaken aback by the amount of redacted information when they received back the black ink-drenched copy of the executive summary to the $40 million, 6,300 page "devastating" report on the CIA's torture program prepared by the Senate Intelligence Committee. In response, James Clapper shot back that the redactions were "minimal" and over 85% of the document was free from black ink (it's not clear if he was counting the margins as well...).

Of course, as Marcy Wheeler has pointed out, this is just about the executive summary of the report -- which was specifically written to be published. In other words, the really "secret" stuff is in the rest of the report, but the 408 page exec summary was written with public disclosure in mind -- meaning that the Senate Intelligence Committee staffers certainly wrote it with the expectation that it would need few, if any, redactions. So the fact that large chunks of it were redacted immediately set off some alarms.

“After further review of the redacted version of the executive summary, I have concluded the redactions eliminate or obscure key facts that support the report’s findings and conclusions. Until these redactions are addressed to the committee’s satisfaction, the report will not be made public.

“I am sending a letter today to the president laying out a series of changes to the redactions that we believe are necessary prior to public release. The White House and the intelligence community have committed to working through these changes in good faith. This process will take some time, and the report will not be released until I am satisfied that all redactions are appropriate.

“The bottom line is that the United States must never again make the mistakes documented in this report. I believe the best way to accomplish that is to make public our thorough documentary history of the CIA’s program. That is why I believe taking our time and getting it right is so important, and I will not rush this process.”

Senator Carl Levin then came out with a much more strongly wordedcondemnation of the redactions suggesting that they were clearly designed to hide embarrassing information, which is not a legitimate reason for redactions:

“The redactions that CIA has proposed to the Intelligence Committee’s report on CIA interrogations are totally unacceptable. Classification should be used to protect sources and methods or the disclosure of information which could compromise national security, not to avoid disclosure of improper acts or embarrassing information. But in reviewing the CIA-proposed redactions, I saw multiple instances where CIA proposes to redact information that has already been publicly disclosed in the Senate Armed Services Committee report on detainee abuse that was reviewed by the administration and authorized for release in 2009. The White House needs to take hold of this process and ensure that all information that should be declassified is declassified.”

Senator Mark Udall issued a statement in which he notes that the "strategic" redactions are used to distort the nature of what's in the report:

"While Director Clapper may be technically correct that the document has been 85 percent declassified, it is also true that strategically placed redactions can make a narrative incomprehensible and can certainly make it more difficult to understand the basis for the findings and conclusions reached in the report. I agree wholeheartedly that redactions are necessary to protect intelligence sources and methods, but the White House must work closely with this committee to reach this goal in a way that makes it possible for the public to understand what happened.

"I am committed to working with Chairman Feinstein to declassify the Senate Intelligence Committee's study to the fullest extent possible, correct the record on the CIA's brutal and ineffective detention and interrogation program, and ensure the CIA learns from its past mistakes. And in light of the importance of the work the Senate Intelligence Committee has undertaken, I believe that the chairman should take all necessary time to ensure that the redactions to the executive summary are appropriate — not merely made to cover up acts that could embarrass the agency.

"The CIA should not face its past with a redaction pen, and the White House must not allow it to do so."

All three of those Senators are well aware of what's in the report, and it appears they recognize that the black ink was being used not to protect national security or "sources and methods" but rather to hide or distort the facts of the CIA's torture program.

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]]>just-release-ithttps://www.techdirt.com/comment_rss.php?sid=20140805/15240828119Mon, 4 Aug 2014 05:41:00 PDTJames Clapper Insists Redactions On The Torture Report Are 'Minimal'Mike Masnickhttps://www.techdirt.com/articles/20140803/07215128091/james-clapper-insists-redactions-torture-report-are-minimal.shtml
https://www.techdirt.com/articles/20140803/07215128091/james-clapper-insists-redactions-torture-report-are-minimal.shtmlconcern about how much of the executive summary of the Senate Intelligence Committee's report on the CIA torture program had been redacted during the declassification process. In response, Director of National Intelligence James Clapper has angrily shot back that there were only "minimal" redactions:

More than 85% of the Committee Report has been declassified, and half of the redactions are in footnotes. The redactions were the result of an extensive and unprecedented interagency process, headed up by my office, to protect sensitive classified information. We are confident that the declassified document delivered to the Committee will provide the public with a full view of the Committee’s report on the detention and interrogation program, and we look forward to a constructive dialogue with the Committee.

Compare that to Feinstein's statement, which noted:

A preliminary review of the report indicates there have been significant redactions. We need additional time to understand the basis for these redactions and determine their justification.

Reporter Jason Leopold spoke to some people knowledgeable about the redactions, who said that they were about methods of torture that hadn't been revealed... and about countries that helped the CIA. Basically, more stuff that would embarrass the CIA and certain allies, but which wouldn't actually impact national security today.

Two officials with access to the declassified executive summary told VICE News that some of the redactions allegedly pertain to the manner in which the detainees were held captive, and to certain torture techniques that were not among the 10 “approved” methods contained in a Justice Department legal memo commonly referred to as the “torture memo.” The officials said the never before–revealed methods, which in certain instances were “improvised,” are central to the report because they underscore the “cruelty” of the program. Some other redactions allegedly pertain to the origins of the program and the intelligence the CIA collected through the use of torture, which the Senate report claims was of little or no value — a claim with which the CIA disagrees.

Another US official told VICE News that the CIA “vehemently opposed” the inclusion of some of the footnotes because they allegedly revealed too many “specific” details about the CIA’s operational files, which evidently contain information about foreign intelligence sources and operations, and provide clues about the foreign governments that allowed the CIA to operate its torture program in their countries. (The National Clandestine's Service's operational files are protected from public disclosure and open records laws.) The report, according to the US official, identifies the countries where the suspected terrorists were held as “Country A, Country B, Country C.”

Of course, if we're going to "come clean" on this black spot in our history, it would help to really come clean about it. Hiding that the torture the CIA did was much worse than originally thought means that officials still aren't willing to come to terms with what the CIA did.

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]]>the least untruthful thing he could sayhttps://www.techdirt.com/comment_rss.php?sid=20140803/07215128091Fri, 1 Aug 2014 19:39:00 PDTWhite House Finishes Review Of CIA Terror Report: Feinstein Wants To Know Why It's Basically All Blacked OutMike Masnickhttps://www.techdirt.com/articles/20140801/16225428085/white-house-finishes-review-cia-terror-report-feinstein-wants-to-know-why-its-basically-all-blacked-out.shtml
https://www.techdirt.com/articles/20140801/16225428085/white-house-finishes-review-cia-terror-report-feinstein-wants-to-know-why-its-basically-all-blacked-out.shtmlfirst crack at redacting the 480 page declassified executive summary of the 6,300 page, $40 million Senate Intelligence report into the CIA's torture program. Once the CIA was done with it, it was handed over to the White House to exhaust reserve stores of black ink.

And that appears to be exactly what happened. Late Friday, Senator Dianne Feinstein announced that the White House had returned the executive summary, but she's a bit overwhelmed by all the black ink and is holding off releasing the document until her staff can look into why there were so many redactions:

The committee this afternoon received the redacted executive summary of our study on the CIA detention and interrogation program.

A preliminary review of the report indicates there have been significant redactions. We need additional time to understand the basis for these redactions and determine their justification.

Therefore the report will be held until further notice and released when that process is completed.

At least Feinstein didn't just rubber stamp the redactions. The Senate Intelligence Committee has been pushing to release this report for over a year now, and it's been clear that the CIA/White House was going to fight them on it somewhat.

Given the most recent revelations about the CIA's attempt to spy on the Senate and to lie and mislead the Senate and the public about all of this, it seems like we shouldn't take their word for any of this. One hopes that the Senate pushes back strongly on bogus redactions. Or, better yet, that the Senate Intelligence Committee just overrides the White House and releases it themselves. Or, you know, that someone decides to just leak the damn thing already...

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]]>let's-try-this-againhttps://www.techdirt.com/comment_rss.php?sid=20140801/16225428085Tue, 24 Jun 2014 09:02:00 PDTCIA Finishes Its Torture Report Redactions As Relations With Senate Intelligence Committee Have Become 'Strained'Mike Masnickhttps://www.techdirt.com/articles/20140624/06154427664/cia-finishes-its-torture-report-redactions-as-relations-with-senate-intelligence-committee-have-become-strained.shtml
https://www.techdirt.com/articles/20140624/06154427664/cia-finishes-its-torture-report-redactions-as-relations-with-senate-intelligence-committee-have-become-strained.shtmldeclassify parts of the executive summary of its $40 million, 6,300-page report on the disastrous CIA torture program. Of course, as part of that, the White House said it would let the CIA take a first crack at figuring out what to redact, with the expected answer being "a whole hell of a lot." The CIA has apparently now turned its first draft of redactions over to the White House, which is expected to further redact things, because the State Department is afraid that releasing the report might make people angry at US officials. While that may be true, it would seem that the proper response to that would have been to, you know, not torture people, rather than to hide the report under a bunch of black ink.

Of course, there's a separate meta-drama within all of this, which was the big fight between the CIA and the Senate Intelligence Committee who wrote the report, after it came out that the CIA spied on the Senate staffers working on this report. That got even more messy, when the CIA then asked the DOJ to investigate those Senate staffers for possible crimes, while the Senate also asked the DOJ to investigate if the CIA had broken the law in spying on those staffers' computers. Needless to say, there's been something of a chill in "relations" between the CIA and the Senate Intelligence Committee.

In the Politico report about the CIA handing the report over to the White House, it includes a tidbit at the end, suggesting that the chilly relationship has not thawed at all:

Sen. Jay Rockefeller (D-W.Va.), a former Intelligence Committee chairman, said the declassification process has strained relations between the committee and the administration’s intelligence apparatus. The CIA has accused the committee of removing an internal interrogation review from its facilities — and Feinstein has charged that the CIA erred in removing that document from the committee’s computers.

“There’s a code of silence. And it stems from the redaction of this enhanced interrogation, torture report,” Rockefeller said of congressional relations with the CIA.

While the "code of silence" seems stupid and petty, frankly, it's probably a good thing that the sides aren't too chummy. The whole point of the Intelligence Committees in both houses of Congress is supposed to be for oversight of the intelligence community. However, in recent years that's obviously changed into something entirely different, where those Committees seemed much more focused on being the intelligence community's cheerleaders and defenders, rather than overseers. The relationship here should be somewhat adversarial. No one's saying they need to hate each others' guts, but it's pretty clear that bad things happen when the relationship has become downright friendly.

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]]>shouldn't they always be that wayhttps://www.techdirt.com/comment_rss.php?sid=20140624/06154427664Thu, 15 May 2014 15:01:01 PDTYet Again, A Freedom Of Information Act Request Results In LESS Information Being FreedTim Cushinghttps://www.techdirt.com/articles/20140428/14394027053/yet-again-freedom-information-act-request-results-less-information-being-freed.shtml
https://www.techdirt.com/articles/20140428/14394027053/yet-again-freedom-information-act-request-results-less-information-being-freed.shtml
Intelligence agencies seem to make some very un-intelligent decisions. Just last month, James Clapper told NSA employees they were no longer free to talk to the media in an extremely misguided attempt to head off future leaks.

Last month, ODNI issued a heavily redacted version of its Intelligence Community Directive 304 on “Human Intelligence.” The redacted document was produced in response to a Freedom of Information Act request from Robert Sesek, and posted on ScribD.

The new redactions come as a surprise because most of the censored text had already been published by ODNI itself in an earlier iteration of the same unclassified Directive from 2008. That document has since been removed from the ODNI website but it is preserved on the FAS website here.

So, why would it do this? Steven Aftergood at FAS Secrecy News suspects it might be the ODNI caving to the CIA's desire to keep everything a secret.

A comparison of the redacted and unredacted versions shows that ODNI is now seeking to withhold the fact that the Director of the Central Intelligence Agency functions as the National HUMINT Manager, among other things.

The CIA is only rivaled by the New York Police Department in terms of unresponsiveness to FOIA requests. That it would demand information related to its "super-secret" HUMINT (human intelligence) work be redacted isn't a surprise. That it would have no idea that this information is out in the open is a bit more surprising. But considering the government's extremely scattershot approach to overclassification, it is not entirely unexpected.

The entire document is marked as "Unclassified," which means there's very little reason to have any of this redacted, especially considering its previous official, unredacted release. The CIA isn't the only agency to have its information withheld, although that is probably more a product of what the redacted statement says, rather than an indication of the other agencies' desire for secrecy. The sections for both the FBI and the Defense Department have this sentence blacked out.

Apparently, the ODNI would prefer that no one know (enemies or citizens) these agencies secure information through "clandestine means," which is something everyone expects the CIA to be doing, if not the FBI.

The exemption stated [b(3)] is bit strange itself. It's supposedly limited to information that is subject to other statutes prohibiting the information's disclosure. Whatever that unnamed statute is, it must have gone into effect at some point between 2009 (the latest date on the unredacted version) and last month. Or, more likely, the exemption was just a handy excuse for blotting out the CIA's involvement in this particular form of intelligence gathering, one the ODNI won't have to explain until the end of the year when it (like all government agencies) must list the statutes used to justify b(3) redactions.

This is just another example of the greatest irony of the FOIA Act. The ODNI publishes a completely unredacted version on its own site but when a citizen asks for a copy, it redacts half the document. A Freedom of Information Act response creates an information deficit. That makes sense.

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]]>the-ODNI-will-be-around-shortly-to-redact-your-brainhttps://www.techdirt.com/comment_rss.php?sid=20140428/14394027053Fri, 18 Apr 2014 14:40:41 PDTThe Crazy Redactions Of The No Fly List Decision: The Kafkaesque 'On-Off-On' RedactionsMike Masnickhttps://www.techdirt.com/articles/20140417/18082226951/crazy-redactions-no-fly-list-decision-kafkaesque-on-off-on-redactions.shtml
https://www.techdirt.com/articles/20140417/18082226951/crazy-redactions-no-fly-list-decision-kafkaesque-on-off-on-redactions.shtmlkey information revealed and the newly unredacted version of the court's ruling in the Rehinah Ibrahim "no fly list" case (namely: that the US has a "secret exception" by which it can put people into the terrorist screening database despite no "reasonable suspicion" that they're a threat). However, seeing as we had noted some of the bizarre redactions in the original, and now that we have the unredacted version, I figured we could look at some of the more bizarre redactions now that they've been revealed. Let's start with what might have been the most hilarious redaction from the original

If you can't read it, it's:

Given the Kafkaesque [REDACTED] treatment imposed on Dr. Ibrahim, the government is
further ordered expressly to tell Dr. Ibrahim [REDACTED] (always subject, of course, to future developments and evidence that might
[REDACTED]). This relief is appropriate and warranted because of the
confusion generated by the government's own mistake and the very real misapprehension on her
part that the later visa denials are traceable to her erroneous 2004 placement on the no-fly list,
suggesting (reasonably from her viewpoint) that she somehow remains on the no-fly list.

Now those redactions have been uncovered, and here's what we see (with the redacted portions in yellow):

And the text version, with redacted portions underlined:

Given the Kafkaesque on-off-on-list treatment imposed on Dr. Ibrahim, the government is
further ordered expressly to tell Dr. Ibrahim that she is no longer on the no-fly list and has not
been on it since 2005 (always subject, of course, to future developments and evidence that might
warrant reinstating her to the list). This relief is appropriate and warranted because of the
confusion generated by the government's own mistake and the very real misapprehension on her
part that the later visa denials are traceable to her erroneous 2004 placement on the no-fly list,
suggesting (reasonably from her viewpoint) that she somehow remains on the no-fly list.

Many people rightly mocked the original version as the Kafkaesque nature of the situation appeared to be increased by that particularly hilarious looking redaction. Of course, now having seen all the redactions, we can see the true reason behind it. It appears that, despite all of this, Ibrahim is still in the Terror Screening Database (TSDB), for some secret reason, even though everyone admits she's no threat. And that secret reason is apparently unrelated to the original mistake.

In other words, the purpose of all those original redactions was to misleadingly suggest that Ibrahim had been cleared from all lists, but the "on-off-on-list" aspect was actually hidden in the redacted version. Now that it's all been revealed, reading between the lines, we see that Ibrahim is only being cleared from some lists and databases, while remaining in others that likely prevent her from ever returning to the US. In other words, the redactions were created to mislead the public into believing that Ibrahim has been totally cleared, when the reality is she's still in the same basic position -- other than the fact that she now knows she's in the TSDB rather than the no fly list, which she was removed from all the way back in 2005.

Still, other redactions seem equally bizarre. Take this one:

The unredacted version says:

Government counsel has conceded at trial that Dr. Ibrahim is not a threat to our
national security. She does not pose (and has not posed) a threat of committing an act of
international or domestic terrorism with respect to an aircraft, a threat to airline passenger or civil
aviation security, or a threat of domestic terrorism. This the government admits and this order
finds.

Why was that redacted? Perhaps the government thought the reasons someone might be put on the list needed to be secret? But, did anyone doubt that any of the things listed above were considered reasons why you might be put on the no fly list or the terrorist screening database? This identical redaction was done later in the ruling as well, again enforcing the idea that the government sought to hide the fact that you have to be a threat to one of those three things to be placed on the lists. But it also hid the fact that even if you were not one of those things, you can still be placed in the Terrorist Screening Database for a "secret exception" to the reasonable suspicion requirement.

Another bizarre one, concerning an attempt in 2006 to have her removed from all lists:

The unredacted version:

In a form dated February 10, 2006, an unidentified government agent requested that
Dr. Ibrahim be "Remove[ d) From ALL Watchlisting Supported Systems (For terrorist subjects:
due to closure of case AND no nexus to terrorism)" (TX 10). For the question "Is the individual
qualified for placement on the no fly list," the "No" box was checked. For the question, "If no, is
the individual qualified for placement on the selectee list," the "No" box was checked.

Can anyone explain why this was redacted? It makes no sense at all.

There is also a lengthy discussion of how the US blocked Ibrahim's daughter, Raihan Binti Mustafa Kamal, from flying to the US for the trial and then lied about it. We noted how bizarre it was that Judge William Alsup's entire discussion of what happened there was redacted. Now seeing the full version, it is, once again, entirely unclear why it was redacted in the first place. The unredacted parts do show more screwups by the US, in which Homeland Security falsely flagged Kamal based on rules that are not supposed to apply to US citizens, even though she is a US citizen. In fact, it notes that Customs and Border Patrol realized in six minutes that she was a US citizen, but then there was a series of other confusions that resulted in her not being allowed to board the flight.

Unfortunately, despite considerable anger on Judge Alsup's part, when all of this came out, it appears that, in the end, he did nothing about this, other than make sure that Kamal's own record in the TSDB was "updated... to reflect that she was a United States citizen."

In the end, the revelation of these redactions do reveal that Ibrahim still appears to be unable to come to the US, and also suggests that the US government tried to use redactions to hide this fact -- allowing the public to believe that Ibrahim had been entirely cleared, when she had not been. It also sought to hide, as mentioned in our earlier post, that the DOJ has some "secret exception" that allows them to basically destroy someone's life, even if there's no reasonable suspicion that they're a terrorist threat of any kind.

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]]>dig-inhttps://www.techdirt.com/comment_rss.php?sid=20140417/18082226951Fri, 18 Apr 2014 07:44:00 PDTUS Has A 'Secret Exception' To Reasonable Suspicion For Putting People On The No Fly ListMike Masnickhttps://www.techdirt.com/articles/20140417/17265226950/us-has-secret-exception-to-reasonable-suspicion-putting-people-no-fly-list.shtml
https://www.techdirt.com/articles/20140417/17265226950/us-has-secret-exception-to-reasonable-suspicion-putting-people-no-fly-list.shtmlRahinah Ibrahim and her attempt to get off the no fly list. In January, there was an indication that the court had ordered her removed from the list, but without details. In February, a redacted version of the ruling revealed that the whole mess was because an FBI agent read the instructions wrong on a form and accidentally placed her on the no fly list, though we noted that some of the redactions were quite odd.

However, earlier this week, the court finally released the unredacted version, and we'll have a few things to say about the choice of redactions in a later post. But first, there were three main "reveals" from the newly unredacted version. The first is that Ibrahim was actually put on multiple lists by mistake (and never for any clear reason) and was actually dropped from the no fly list years ago (though the other lists created the same effective problem in barring her from being allowed to travel to the US). The second is that the US government has a "secret exception" to the requirement that there be "reasonable suspicion" to put someone in various terrorist databases, and that secret exception was later used on Ibrahim. And third, that despite the implications from the redacted versions, the fully unredacted ruling shows that Ibrahim is still likely blocked from coming to the US for separate undisclosed reasons, even though the government fully admits that she is no threat. All of these things were hidden by the redacted version.

Let's start with the first issue -- that Ibrahim was not just on the no fly list, but multiple other lists and databases. This all stemmed (at first) from that initial mistake from FBI Agent Kevin Michael Kelley. The yellow highlighted portions on this form were redacted in the original version, but now they're public:

As you can see, Agent Kelley was supposed to be checking which lists NOT to put Ibrahim on, and did the reverse of what he intended to do, meaning that she got placed on both the no fly list and the Interagency Border Information System (IBIS). In the redacted version, all mentions of IBIS were redacted. Note that, from this, Kelley did intend to put her on the Selectee list. Later, an unredacted portion reveals that at the time she was removed from that selectee list, she was added to the lists the US gives to Australia and Canada (TACTICS and TUSCAN -- though no reason for that was ever provided). The court also notes that all the way back in 2006, a government agent requested that Ibrahim be removed from all lists, and she was removed from some, but not the others.

However -- and here's where it gets really sketchy -- the government started putting her back into the terrorist screening database (TSDB). She was added back in 2007... and then removed three months later, for no clear reason. But then, in 2009 she was added back to the TSDB "pursuant to a secret exception to the reasonable suspicion standard." Let's repeat that. In order to be put into the TSDB, the government is required to show a "reasonable suspicion" that the person is a terrorist. However, what this court ruling has revealed is that there is an unexplained secret exception that allows people to be placed on the terrorist screening database even if there's no reasonable suspicion, and the government used that secret exception to put Ibrahim back on the list.

Later in the ruling it notes that the terrorist screening center knows Ibrahim is not a terrorist threat. This line was revealed back in February:

The TSC has determined that Dr. Ibrahim does not currently meet the reasonable
suspicion standard for inclusion in the TSDB.

However, the next two sentences were redacted until now:

She, however, remains in the TSDB pursuant to a classified and secret exception to the reasonable suspicion standard. Again, both the reasonable suspicion standard and the secret exception are self-imposed processes and procedures within the
Executive Branch.

The ruling also makes it clear that Ibrahim has not been on the actual no fly list (even if she is on other lists) since 2005, and that she should be told this (and, indeed, to comply with the law, the government has now told her solely that she's not on the "no fly" list and hasn't been since 2005). It also tells the government to search for all traces of her being on all such lists and correct all of those that are connected to Agent Kelley's initial mistake. However, it's not at all clear if this applies to the later additions to the TSDB, which was done for this secret and undisclosed exception, and might not be directly because of Agent Kelley's mistake (though, potentially is indirectly because of that). In fact, a different unredacted section now says that the reasons why Ibrahim was denied a visa (which were revealed to the court in a classified manner) were valid, and thus it appears that Ibrahim will still be denied visas in the future (unredacted portions underlined) -- and, indeed, as we explain below that has already happened:

The Court has read the relevant classified information, under seal and ex parte, that led to
the visa denials. That classified information, if accurate, warranted denial of the visa under
Section 212(a)(3)(B) of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(3)(B). (That
information was different from the 2004 mistaken nomination by Agent Kelley.) Therefore, under
the state secrets privilege, any challenge to the visa denials in 2009 and 2013 must be denied

Thus, it appears that while Ibrahim has been told she's been taken off the no fly list (and has been for nearly ten years), she's still not going to be able to travel to the US, because she's still in the TSDB for an unrevealed secret reason -- even though everyone admits she's not a threat. And, indeed, Ibrahim tried to apply for a visa to the US on Monday and was denied (with the apparent reason -- if you read between the lines -- being that she is related to someone "engaged in a terrorist activity.")

Either way, what sort of country is this where there's a secret exception to "reasonable suspicion" that will put you on a set of secret lists that get you treated like a terrorist for wanting to travel?

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]]>also-known-as-the-'because-we-wanted-to'https://www.techdirt.com/comment_rss.php?sid=20140417/17265226950Wed, 9 Apr 2014 00:13:40 PDTFOIA Exemption B(5) Means Never Having To Let A Redaction Opportunity Slip ByTim Cushinghttps://www.techdirt.com/articles/20140327/14203026715/foia-exemption-b5-means-never-having-to-let-redaction-opportunity-slip.shtml
https://www.techdirt.com/articles/20140327/14203026715/foia-exemption-b5-means-never-having-to-let-redaction-opportunity-slip.shtmlNSA rules violations to GPS tracking to transcripts of court proceedings. Redaction is a way of life for the government, making a mockery of both the Freedom of Information Act AND this administration's claim that the White House is the most transparent place on earth.

inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency

In reality, it covers all of the following, according to Unredacted's research.

The Department of Justice’s use of b(5) to censor dozens of pages of a candid history of Nazi-hunting (and Nazi-protecting) by the U.S. government to such a self-defeating extent that former officials leaked the entire document to the New York Times, instead of fulfilling a Freedom of Information request.

The CIA, supported by the Department of Justice, is currently using the b(5) exemption to keep secret its history of the 1961 Bay of Pigs Invasion, arguing that it’s release “could confuse the public.”

Muckrock’s Shawn Muscrave has reported that The Federal Elections Commission attempted to argue that it’s own guidance on when to apply b(5) is itself exempt from release under b(5) –even though it had already been posted on the FEC’s website.

This is the next FOIA battleground, according to Unredacted. The expansive reading of this exemption has lead to the government adopting this as the go-to redaction, applied haphazardly to withhold information from the public. The b is for "broad," or as Redacted puts it, "withhold it because you want to."

The blog points to one of the most ridiculous redactions in a sea of misuse -- the withholding of a State Department employee's hand-scrawled "commentary" on a proposed bill to designate Pakistan as a state sponsor of terrorism.

Sure enough, b(5) was cited when redacting the opinion ("What a bunch of crap!"), meaning that this penned commentary somehow was an inter/intra-agency "memorandum or letter" not meant for the public's eye. The fact that it was neither and was written on a copy of a publicly available piece of legislation didn't stop the agency from redacting it. Two years later, it was finally forced by the court to uncover the rogue commentary.

"Because you feel like it" sums it up completely. Someone hoped to head off a microscopic bit of embarrassment by abusing the FOIA exemptions and somehow we're expected to believe other b(5) redactions are done with a sense of purpose and restraint.

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]]>government as parent: because I said sohttps://www.techdirt.com/comment_rss.php?sid=20140327/14203026715Wed, 19 Mar 2014 15:55:00 PDTJudge Tells FBI To Explain Its Overly-Broad Use Of FOIA ExceptionsTim Cushinghttps://www.techdirt.com/articles/20140317/16151426602/judge-tells-fbi-to-explain-its-overly-broad-use-foia-exceptions.shtml
https://www.techdirt.com/articles/20140317/16151426602/judge-tells-fbi-to-explain-its-overly-broad-use-foia-exceptions.shtml
As we recently covered, a judge had ordered the CIA to explain its ridiculous FOIA response tactics. The CIA had, with a straight face, first claimed it could ONLY produce hard copies of digital files from an internal security journal. Then, it said the only way it could create digital files was by printing out the files and re-scanning them. The judge noted in her order that Congress recognized government agencies would be reluctant to hand over documents to the public, which is why it directed agencies to make every reasonable effort to accommodate requests. This, of course, was not what the legislators had in mind when they crafted the Freedom of Information Act.

Now, it's the FBI being asked by a judge to explain its overuse of FOIA exemptions to withhold documents. This time, it's the (in)famous Ryan Shapiro suing our government for access to information. Shapiro is well-known by the FBI, which has attempted to shut down the prolific requester by simply refusing his FOIA requests. It justifies this violation of the FOIA by claiming (somewhat accurately) that Shapiro is utilizing a "mosaic" method to gain access to information the FBI clearly wants to keep hidden. The theory is that with enough overlapping requests, responses will turn up either different documents or inconsistent redactions, thus revealing potentially sensitive information.

Shapiro currently has six open FOIA-related lawsuits (five vs. the DOJ and one vs. the CIA). This one, originally filed in April of last year, centers on Occupy Houston-related FBI documents.

Specifically Shapiro asked for FBI records about "a potential plan to gather intelligence against the leaders of [Occupy Wall Street-related protests in Houston, Texas] and obtain photographs, then formulate a plan to kill the leadership [of the protests] via suppressed sniper rifles..."

Shapiro said he wanted the records for his doctorate work, and that he intended to release urgent info about Occupy Houston to the public.

The FBI found 17 pages of pertinent records, gave Shapiro five of them, with some information redacted, and withheld 12.

The FBI has filed to dismiss, stating that it did a "thorough" search for responsive documents and released all non-exempt papers. But the judge didn't buy every argument the FBI made, questioning its use of an exemption that excludes "records or information compiled for law enforcement purposes." ("Law enforcement" being #2 on the FBI's To Do List [following "national security"] would seemingly make every document the FBI "compiles" exempt if given a broad enough reading.)

"(Shapiro) argues that FBI has not established that it actually conducted an investigation into criminal acts, specified the particular individual or incident that was the object of its investigation, adequately described the documents it is withholding under Exemption 7, or sufficiently connected the withheld documents to a specific statute that permits FBI to collect information and investigate crimes.

Mr. Shapiro further alleges that FBI has failed to state a rational basis for its investigation or connection to the withheld documents, which he describes as overly-generalized and not particular. On the latter point, the Court agrees."

Now, the FBI will need to prove to the judge that its exemption claim isn't overly broad, possibly in an in-camera session considering the claimed sensitivity of the withheld documents. But as This Anonymous Coward pointed out on Twitter, a better question might be why the FBI was so interested in protecting the banks from Occupy protestors, rather than investigating the assassination threats against Occupy leaders. Chances are, that question will go unanswered by the FBI, whether or not these documents are finally freed.

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]]>Occupy-J.E.-Hooverhttps://www.techdirt.com/comment_rss.php?sid=20140317/16151426602Fri, 31 Jan 2014 07:33:00 PSTHomeland Security Redacts Drone Info It Already Released Publicly In Report To CongressMike Masnickhttps://www.techdirt.com/articles/20140130/15574726054/homeland-security-thinks-information-it-already-released-publicly-about-drones-must-be-redacted-congress.shtml
https://www.techdirt.com/articles/20140130/15574726054/homeland-security-thinks-information-it-already-released-publicly-about-drones-must-be-redacted-congress.shtmlquite arbitrary, and when the same document is released multiple times, the redactions can be totally different. However, the latest screw up along those lines is quite incredible. Last summer, Homeland Security's Customs and Border Patrol sent EFF a bunch of records in response to EFF's FOIA lawsuit concerning CBP's use of drones (CBP later "found" additional records it had neglected to pass along).

Those documents were certainly interesting, but perhaps more interesting (and troubling) is that last fall, the Homeland Security and Governmental Affairs Committee (HSGAC) in Congress had asked DHS for similar information, including "all mission logs related to U.S. Customs and Border Patrol's (CBP) drone program from 2010 to 2013." DHS eventually handed over that information, including many of the same documents it released to the EFF, which were shared publicly. Except... the documents it gave to Congress had many more redactions than the ones they released to EFF.

Senator Tom Coburn's staff noticed this, and thought it was, well, rather odd, that DHS seems to think that the public can handle the information, while the relevant oversight committee in Congress cannot. Coburn has now sent a letter asking about the differences:

DHS insisted these documents were so sensitive they could not be produced without
explicit promises they would be handled with utmost care, and reviewed only by Committee
staff. The Department further requested the Committee promise not to release any document
without receiving permission from DHS, and to return or destroy all documents when they had
been reviewed. The Committee declined to oblige this virtually unprecedented request.

The documents DHS produced are extensively redacted. DHS claims it redacted
information relating to activities by other agencies. The release of that information to Congress,
it stated, is "under review," presumably with the other agencies.

My staff has reviewed the logs DHS produced for calendar year 2010. From this limited
review, it appears that DHS has redacted information in the documents it provided to the
Committee that is not redacted in the same documents DOJ released publicly.

For 2010 alone, my staff has tallied at least 20 instances in which the publicly-released
documents appear to contain legible passages which are redacted entirely or in large part from
the documents DHS provided the Committee. In other words, DHS appears to have chosen to
withhold information from Congress which the DOJ -- and, we must assume, DHS -- has
determined was appropriate to share with the American public. I have attached examples to this
letter for your review.

Also of concern is the apparent lack of coordination between DHS and outside agencies,
particularly the Department of Justice. DHS stated to the Committee that the passages it
redacted were "pending review" with an outside agency. However, a comparison of the redacted
passages with the publicly-released documents reveals that several of those passages relate to
support for DOJ components, including the FBI. If the DOJ compels public release of
documents detailing activities on behalf of its own component, and the documents are
subsequently released to the public, it is not clear why DHS would later withhold the same
information from Congress in order to consult with DOJ.

Oh, also, Coburn's staff noticed that some of the documents included don't appear to have been given to EFF at all, raising a separate question: that even among the newly found documents that DHS is still withholding pertinent information.

Of secondary concern but still significant, my staff noted several instances in which
information that was provided to Congress does not seem to appear, even in redacted form, in the
public documents released to the public interest group, suggesting that information may have
been withheld in full from the organization without explanation or accounting.

Not surprisingly, Coburn is... not pleased with DHS over this.

The Department's conduct in this matter has impacted the Committee's ability to conduct
its Constitutional responsibilities to oversee DHS operations. It has delayed access to relevant
documents, and what it has provided falls short of what it is required to share with anyone, let
alone in response to a Congressional request.

For over a year, this Committee has pressed the Department for more information
regarding its unmanned aerial vehicle operations. These improperly redacted documents raise
even more questions. If these vehicles are being operated in accordance with U.S. laws and in
support of the Department's statutory mission, the lawfulness and efficacy of their operations
should be easily demonstrable. This exercise may be said to demonstrate many things, but it
does not demonstrate efficiency or transparency. Congress and the American people have a right
to expect more from a Department which asks to be trusted with powerful tools and great
authorities.

After all this, Coburn orders DHS to hand over "a full, unredacted set of the documents" as soon as possible.

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]]>oopshttps://www.techdirt.com/comment_rss.php?sid=20140130/15574726054Tue, 28 Jan 2014 11:01:35 PSTNew York Times Suffers Redaction Failure, Exposes Name Of NSA Agent And Targeted Network In Uploaded PDFTim Cushinghttps://www.techdirt.com/articles/20140128/08542126021/new-york-times-suffers-redaction-failure-exposes-name-nsa-agent-targeted-network-uploaded-pdf.shtml
https://www.techdirt.com/articles/20140128/08542126021/new-york-times-suffers-redaction-failure-exposes-name-nsa-agent-targeted-network-uploaded-pdf.shtml
It appears as if the New York Times, in its latest publication of leaked NSA documents, failed to properly redact the PDF it uploaded, exposing the name of the NSA agent who composed the presentation as well as the name of a targeted network.

As soon as the article was posted, someone from or associated with a popular cryptography website claims to have downloaded a pdf of the Snowden document from The New York Times and discovered that three of the redactions that were intended to obscure sensitive national security information were easily accessible by highlighting, copying and pasting the text. The poorly-redacted file was subsequently posted to the cryptography website, then promoted via Twitter. (We’re not going to post the name of the website that posted the file to protect the information contained within.)

…

So, the identity of an NSA agent is out there in public view within the same document in which a target of this program is named. All of this is due to the incompetence of whoever failed to properly redact the pdf before publishing it for the world to see — as well as for the aforementioned cryptography site to nab and republish it.'

…

This was bound to happen at some point in this ongoing saga: the name of an American agent has been leaked to the public via a document stolen by Edward Snowden. To add to the irresponsibility of how Snowden went about this operation, he distributed untold thousands of documents to a gaggle of technological neophytes who barely understand how to used Adobe Acrobat, much less the phenomenally complicated details of top secret NSA operations.

Cesca somehow feels the privacy of a single NSA agent trumps the public's interest in infringements on their own privacy -- not just here in the US but all over the world. Certainly, the New York Times should have made sure its redactions were actually redactions before publishing the document, but Cesca's hyperbolic attack isn't doing his side any favor.

One agent's name was exposed, one who may not even be employed by the agency at this point. (The documents are from 2010.) The target revealed is nothing more than the Al Qaeda's "branch operation" in Mosul, Iraq. Al Qaeda has been the focus of counterterrorism efforts since before the 9/11 attacks and the revelation that the NSA is targeting mobile networks in Mosul shouldn't come as a shock to anybody, least of all Al Qaeda members.

This doesn't excuse the NYT's carelessness, however. It is disseminating some very sensitive NSA documents and should be ensuring any information it chooses to withhold stays withheld. But this error doesn't invalidate Snowden's exposure of the NSA's programs, no matter how Cesca (and those like him) spin it.

The NSA and other government agencies have suffered redaction failures as well, accidentally exposing information they would rather have withheld from the public. Does the government get held to the same standard by the NSA's booster club? Hardly. Humans make mistakes, no matter which side of this issue they're on.

[The original document uploaded by the NY Times is posted below (via Cryptome). To see the unredacted text, simply click on the Text tab.]

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]]>make-sure-to-dot-all-i's-and-blot-out-all-sensitive-infohttps://www.techdirt.com/comment_rss.php?sid=20140128/08542126021Thu, 21 Nov 2013 08:37:24 PSTUS 'Intelligence' Boss Reveals 'Redacted' Date In The URL Of The FileMike Masnickhttps://www.techdirt.com/articles/20131121/03204025320/us-intelligence-boss-reveals-redacted-date-url-file.shtml
https://www.techdirt.com/articles/20131121/03204025320/us-intelligence-boss-reveals-redacted-date-url-file.shtmllatest document dump by James Clapper and the Office of the Director of National Intelligence this week, in which they declassified a large pile of documents (after being told to by the courts -- though they don't mention that part). But, one of the odder parts was that the dates were redacted on certain legal filings, such as the FISA Court order by judge Reggie Walton smacking the NSA around a bit for not complying with the law. Here's the end of that document with the date redacted:

From that, you can see that the redactions (in both) seem rather arbitrary (especially redacting the dates). In many cases, it's difficult to understand why any of these points were redacted in either document. For example, in the original declassification, the following is redacted, but is available in the new release:

The Court further ordered that it would allow NSA, for a period of 20 days, to continue to share the unminimized results of authorized queries of the PR/TT metadata with NSA analysts other than the limited number of analysts authorized to access such metadata, but that such sharing was not to continue beyond the 20-day period unless the government first satisfied the Court, by written submission, that such sharing is necessary and appropriate on an ongoing basis.

Either way, it says quite a lot (none of it good) about our "intelligence" professionals when they offer up a document with a redacted date (makes no sense in the first place), which is easily revealed by the very URL (wtf?) that the intelligence officials chose, and which is further undermined by the fact that the same document had already been declassified with totally different redactions (and which reveals the date). And we're supposed to believe these folks are smart enough to not screw up with all the data they're collecting on everyone?

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]]>or in the other version of the document you already releasedhttps://www.techdirt.com/comment_rss.php?sid=20131121/03204025320Wed, 13 Nov 2013 07:31:28 PSTDOJ Refuses To Let Tech Companies See Legal Arguments It's Making Against ThemMike Masnickhttps://www.techdirt.com/articles/20131112/22472025222/doj-refuses-to-let-tech-companies-see-legal-arguments-its-making-against-them.shtml
https://www.techdirt.com/articles/20131112/22472025222/doj-refuses-to-let-tech-companies-see-legal-arguments-its-making-against-them.shtmlFirst Amendment right to publish some details on the number of requests they get from the NSA under Section 702 of the FISA Amendments Act, as well as the number of users impacted by those requests, is getting ever weirder. The government had filed its response back at the end of September. And, you might notice, large portions of it are totally redacted. For example, here is page 13 of the document (though, numbered page 8):

At least they didn't redact the page number

Of course, stuff gets filed under seal all the time, and it's not particularly uncommon to see redacted passages in legal documents -- especially (obviously) when it has to do with matters of national security. But, here's what's different. Normally the opposing parties in the case are allowed to see the details of what's redacted. Here, the DOJ is simply refusing to let the tech companies see its own argument. In response, the companies have filed a pretty direct and somewhat angry motion, asking the FISA court to either let them see the arguments, or to strike the redacted portions from the DOJ's motion. Basically, the DOJ is saying that it can make legal arguments that only the court can see, but which the tech companies suing it cannot see. That goes against every basic concept of due process.

The government has submitted a response and supporting declaration for ex parte, in camera review. It has given the providers only a heavily redacted version of its submissions, and it has rejected all requests for greater access.

Unless the government reconsiders its refusal to accommodate the providers' legitimate need to understand the basis for the government's response, the providers respectfully request that this Court strike the redacted portions of the government's brief and supporting declaration. The redacted version of the government's submissions does not comply with Foreign Intelligence Surveillance Court Rule 7(j) because it does not "clearly articulate the government's legal arguments," as the rule requires. If the government's interpretation of the rule were correct, the rule would violate both the First Amendment and the Due Process Clause. To avoid that result, the Court should construe the rule to require fuller disclosure to the providers.

Allowing the government to file an ex parte brief in this case will cripple the providers' ability to reply to the government's arguments and is likely to result in a disposition of the providers' First Amendment claims based on information that the providers will never see. The providers do not dispute that in some cases it may be appropriate for this Court to consider ex parte filings. In this case, however, such a course is neither justified nor constitutional. The providers already know the core information that the government seeks to protect in this litigation--the number of FISC orders or FAA directives to which they have been subject, if any. At issue here is only the secondary question whether the providers may be told the reason why the government seeks to keep that information a secret. The government has not argued that sharing those reasons with the providers or their counsel would endanger national security. Accordingly, unless the government allows the providers' counsel to access its response, the Court should strike the redacted portions of the response.

The whole thing is really quite incredible. Our government is so focused on the secrecy of its secret laws and secret demands that it won't even tell the companies fighting the secrecy the secret reasons it's telling the court it has to keep stuff secret? How is that possibly consistent with basic due process under the law?